NEUTRAL CITATION
R/CR.MA/20131/2021 ORDER DATED: 05/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20131
of 2021
In R/CRIMINAL APPEAL NO. 1688 of 2021
With
R/CRIMINAL APPEAL NO. 1688 of 2021
==========================================================
SUTHAR RAJESH KUMAR JAYANTILAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DIPEN K DAVE(3296) for the Applicant(s) No. 1
MR NIKUL K SONI(5122) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/10/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:-
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal, passed by the learned 3rd Additional Chief Judicial Magistrate, Mehsana in Criminal Case No.3036 of 2019.
Page 1 of 3 Downloaded on : Thu Oct 05 21:08:34 IST 2023
NEUTRAL CITATION R/CR.MA/20131/2021 ORDER DATED: 05/10/2023 undefined
2. Heard learned advocates appearing for the respective parties and perused the impugned judgment and order of the trial Court.
3. Mr. Shubham B. Dave, learned advocate on behalf of Mr. Dipen Dave, learned advocate appearing for the applicant - original complainant submits that the learned trial Court had committed grave error in not considering the evidence with regard to the income in view of the admitted fact that signature on the cheque is not disputed and though presumption is in the favour of the complainant, the learned trial Court had shifted burden to rebut the presumption on the complainant. Learned advocate further draw the attention of this Court on the evidence at Exh.27, which is certificate, wherein, it is mentioned that the loan was taken by the complainant to lend the money to the accused. However, without considering the aforesaid evidence, the judgment and order of the acquittal was passed.
4. Learned advocate Mr. Nikul Soni for the respondent no.2
- accused submits that complainant is failed to prove the case before the learned trial court in establishing the source of Page 2 of 3 Downloaded on : Thu Oct 05 21:08:34 IST 2023 NEUTRAL CITATION R/CR.MA/20131/2021 ORDER DATED: 05/10/2023 undefined income and lending money to the accused. Therefore, the judgment and order of acquittal is rightly passed. Prima-facie, it appears that prior to lending money to the accused, the loan was taken from the Sahakari Mandali and income-tax return, which was produced reveals that the complainant was serving as a teacher and having the salary of Rs.65,880/-.
5. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, there is some arguable case in favour of the applicant, leave, as prayed for, is granted. This application is allowed. Rule is made absolute accordingly. ORDER IN CRIMINAL APPEAL:-
The appeal is admitted.
As the learned advocate Mr. Nikul Soni appears on behalf of respondent no.2 - accused, bailable warrant is not required to be issued upon the accused.
(M. K. THAKKER,J) A. B. VAGHELA Page 3 of 3 Downloaded on : Thu Oct 05 21:08:34 IST 2023